United States v. Lamont Long, Jr. , 701 F. App'x 286 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4218
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAMONT LONG, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, Chief District Judge. (5:16-cr-00041-D-1)
Submitted: October 30, 2017 Decided: November 15, 2017
Before NIEMEYER, TRAXLER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter M. Wood, LAW OFFICE OF PETER WOOD, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First
Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamont Long, Jr., pled guilty without a plea agreement to conspiracy to distribute
and possess with intent to distribute 28 grams or more of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2012). The district court sentenced Long to 264
months’ imprisonment. On appeal, Long contends that the district court erred in applying
a two-level firearm enhancement pursuant to U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2016). We affirm.
We review the application of this Guidelines enhancement for clear error. United
States v. Manigan, 592 F.3d 621, 630-31 (4th Cir. 2010). Under USSG § 2D1.1(b)(1),
sentencing courts are to increase a defendant’s offense level by two levels “[i]f a
dangerous weapon (including a firearm) was possessed.” The Government bears the
initial burden of proving by a preponderance of the evidence that a weapon was
possessed in connection with drug activities. United States v. Bolton, 858 F.3d 905, 912
(4th Cir. 2017). “Although the Government need not prove precisely concurrent drug
trafficking and weapon possession, . . . it must at least prove a temporal and spatial
relation linking the weapon, the drug trafficking activity, and the defendant.” Id. (citation
and internal quotation marks omitted). The Government may prove possession with
circumstantial evidence and, in addition to actual possession of a dangerous weapon,
constructive possession is also sufficient. Manigan, 592 F.3d at 629. “If the Government
satisfies this burden, the defendant may avoid the enhancement by showing that the
weapon’s link to his or her drug activities was ‘clearly improbable.’” Bolton, 858 F.3d at
912 (citation omitted); see USSG § 2D1.1 cmt. n.11(A).
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Upon our review of the materials submitted in the joint appendix and the parties’
briefs, we conclude that the district court did not err in imposing the two-level
enhancement. The district court’s findings are supported by the transcripts of Long’s
March 25 and 26, 2013, calls to coconspirators. To the extent Long seeks to raise new
arguments on appeal regarding a corroboration requirement for his statements, he has not
established exceptional circumstances warranting consideration of this claim. See In re
Under Seal, 749 F.3d 276, 285 (4th Cir. 2014) (“[A]bsent exceptional circumstances, we
do not consider issues raised for the first time on appeal.” (ellipsis and internal quotation
marks omitted)).
Moreover, even if the district court erred in applying the firearm enhancement, any
such error was harmless. See Bolton, 858 F.3d at 911 (“A procedural error is harmless if
(1) the district court would have reached the same result even if it had decided the
guidelines issue the other way, and (2) the sentence would be reasonable even if the
guidelines issue had been decided in the defendant’s favor.” (internal quotation marks
omitted)). The district court stated that it would have imposed the same term of
imprisonment as a variant sentence if it had miscalculated Long’s Guidelines range,
satisfying the first prong of the harmlessness inquiry. Further, we conclude that the
extent of the variance is reasonable as the district court adequately grounded the sentence
in the 18 U.S.C. § 3553(a) (2012) factors. See id. at 911, 915 (holding substantive
reasonableness of variant sentence is reviewed for abuse of discretion and reviewing
court must consider overall sentence and extent of variance). Accordingly, we affirm the
judgment of the district court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
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